Air strikes continue in Gaza. Credit: WHO
By Mouin Rabbani
AMMAN, Jordan, May 22 2024 – The ICC Prosecutor’s applications for arrest warrants regarding the Situation in Palestine represent a milestone. But they are of little credit to Prosecutor Karim Khan.
It is abundantly clear that Khan has been sitting on this file for years, hoping it would simply disappear. Two matters forced his hand.
First, his 2023 indictments of senior Russian officials despite a previous pledge that he would only pursue cases referred to his office by the United Nations Security Council and ignore the rest – particularly the investigations concerning Afghanistan and Palestine that were opposed by the US and UK.
Having gone back on his commitment, the hypocrisy associated with continuing to ignore the Palestine investigation initiated in 2021 became simply too overwhelming, particular as Israel’s genocidal onslaught against the Palestinians in the Gaza Strip intensified in 2024.
Second, the global outcry against his inertia became too loud to ignore. Much as Khan would have preferred to pursue the policy preferences of the US, UK, and Israel, the main sponsors of his campaign for ICC prosecutor, his inaction became untenable.
According to Khan. his office been investigating the Situation in Palestine since early 2021, and is examining all violations of the Rome Statute as since 2014. Yet in his case too, history appears to have commenced on 7 October 2023.
His applications wholly ignore, any and all, issues unconnected with the current situation in the Gaza Strip. Nothing about the crime against humanity that is apartheid, nothing about the war crime of illegal settlement, nothing about Israel’s previous onslaughts against the Gaza Strip, or its systematic sniper attacks against demonstrators during the 2018 Great March of Return.
Ever the careful politician attentive to those who got him elected, he pointedly indicted three Hamas leaders but only two Israeli officials. This raises numerous questions: why did he seek an arrest warrant for the head of Hamas, who according to available reports was not involved in the planning or execution of the 7 October 2023 attacks, but not Israeli President Isaac Herzog, who has explicitly identified Palestinian civilians as legitimate military targets?
Why did Khan decline to apply for arrest warrants for the Israeli military’s chief of the general staff, or any of the senior Israeli military commanders directly responsible for perpetrating the crimes he has enumerated, or other members of Israel’s war cabinet who share full responsibility for its decisions?
Why did he pointedly ignore the crime of genocide, which is explicitly identified in the Rome Statute? It may well be the case that the International Court of Justice (ICJ) is also considering Israel’s responsibility for genocide, but unlike the ICJ the ICC does not deal with individual criminal responsibility.
It seems indisputable that Khan is once again playing politics. His problem is that his efforts to curry favour in Washington will gain him nothing, and he is already being attacked from across the US political spectrum for violating the sacrosanct principle Israeli impunity. Washington will now stop at nothing to ensure that only Khan and Hamas are held to account.
US attempts to interfere with ICC procedures themselves constitute crimes under the Rome Statute. Will Khan seek to hold the raving lunatics who have taken over the Washington asylum to account, or look the other way in the hope of achieving absolution?
The flaws of Khan’s conduct notwithstanding this remains an enormously significant development. Together with the ICJ genocide case, it has now become impossible for Israel to maintain its state of exceptionalism.
It is increasingly being judged both legally and politically on the basis of its actual conduct rather than through the sordid prism of twentieth-century European history. For Israel this represents a defeat of strategic proportions.
Mouin Rabbani is Co-Editor of Jadaliyya, Non-Resident Fellow with the Center for Conflict and Humanitarian Studies (CHS), and Non-Resident Fellow at Democracy for the Arab World Now (DAWN).
IPS UN Bureau
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